DOL Plans to Revise the Overtime Rule

On June 30, the Department of Labor (DOL) filed its reply brief in the Fifth Circuit in relation to its appeal from the November 2016 federal district court decision granting a preliminary injunction to the Fair Labor Standards Act overtime rule. In the brief, DOL asks the court to affirm that the agency can set a salary threshold, while declining to defend the Obama era rule — stating that it will revise the rule through further rulemaking if the Fifth Circuit confirms DOL’s ability to set a salary threshold. While DOL’s argument is extremely nuanced, the following excerpt summarizes DOL’s position and its plan for moving forward:

The district court did not determine whether the salary level set by the 2016 final rule is arbitrary and capricious or unsupported by the administrative record. Because the preliminary injunction rested on the legal conclusion that the Department lacks authority to set a salary level, it may be reversed on the ground that that legal ruling was erroneous. The Department has decided not to advocate for the specific salary level ($913 per week) set in the final rule at this time and intends to undertake further rulemaking to determine what the salary level should be. Accordingly, the Department requests that this Court address only the threshold legal question of the Department’s statutory authority to set a salary level, without addressing the specific salary level set by the 2016 final rule. In light of this litigation contesting the Department’s authority to establish any salary level test, the Department has decided not to proceed immediately with issuance of a notice of proposed rulemaking to address the appropriate salary level. The rulemaking process imposes significant burdens on both the promulgating agency and the public, and the Department is reluctant to issue a proposal predicated on its authority to establish a salary level test while this litigation remains pending. Instead, the Department soon will publish a request for information seeking public input on several questions that will aid in the development of a proposal.

While it is unclear what the Fifth Circuit will do with these arguments, and a decision is likely months away, DOL is moving ahead with the Request for Information (RFI). On June 27, DOL sent the RFI to the Office of Management and Budget’s Office of Information and Regulatory Affairs —one of the final steps before it can be published in the Federal Register and open for public comment.

CUPA-HR spearheaded efforts to educate policy makers about higher education’s concerns with the Obama administration’s rule and is planning to take a similar role with the RFI. As it will be imperative for colleges and universities to be heard during this process, CUPA-HR will closely monitor the situation and keep our membership apprised of additional information as it is made available.